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Doctor’s Failure To Assess Mental Capacity Of Dementia Patient

Health and Disability Commissioner Morag McDowell today released a report finding a doctor in breach of the Code of Health and Disability Services Consumers’ Rights (the Code) for failures in the care of a woman with dementia.

The woman and her partner went to see the doctor to complete a medical certificate certifying the woman’s mental capacity to appoint her partner as her enduring power of attorney (EPOA). A person can only make an EPOA if they have sufficient mental capacity to understand what an EPOA is and what its effect will be.

The doctor presumed she needed to certify that the woman lacked capacity. She completed a medical certificate confirming the woman lacked mental capacity (the first certificate). The doctor did not undertake a formal assessment of the woman’s mental capacity or her ability to understand, retain, and reason through the information required to make a decision to appoint an EPOA.

Subsequently, the woman’s partner returned to the medical centre and told the doctor that the first certificate was not what his solicitor required. The doctor contacted the solicitor for clarification, and concluded that she needed to certify that the woman did have the mental capacity to appoint an EPOA. The doctor completed a medical certificate confirming the woman had mental capacity. She did this despite having the opinion that the woman lacked the requisite mental capacity. The woman went on to appoint her partner as her EPOA.

Health and Disability Commissioner Morag McDowell found that by failing to perform a formal assessment of mental capacity to appoint an enduring power of attorney, and certifying the woman’s capacity to appoint one contrary to her own opinion, the doctor failed to provide services to the woman that complied with legal and professional standards. Ms McDowell found this was an individual failure by the doctor and that the medical centre did not breach the Code.

Ms McDowell’s recommendations included the doctor attend at least three seminars or courses on the topic of completing mental capacity documentation, arrange for peer review of the next three mental capacity documents she signs, and a written apology to the woman’s family.

"Doctors need to be familiar with the process and requirements for certifying whether a patient has the mental capacity to appoint an enduring power of attorney," said Ms McDowell.

"I have recommended that the district health board consider creating an educational booklet for GPs to help them with their assessments," she said.

The full report on case 20HDC00126 is available on the HDC website.

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